Re John Tung Chi Ying

HCAP002594/1987

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PROBATE JURISDICTION

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Coram: Hon. Liu, J. in Chambers

Date of hearing: 21 July 1987

Date of delivery of judgment: 21 July 1987

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JUDGMENT

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1. The late John Tung passed away. He left a Will. His widow was the only named executrix and the sole beneficiary. A grand-nephew has made an assertion to the effect that in the life-time of the testator, a loan to the tune of some US$11 M. was granted and it remained unpaid at his death. I do not propose to give the specific dates. Suffice it for me to outline the course of conduct of the executrix and the grand-nephew.

2. In the probate jurisdiction of our Courts, the grand-nephew caused to be entered a Caveat.   Thereafter, a provisional grant of Probate was petitioned for and obtained by the named executrix. The matter was brought to my notice by the Probate Master who had called in the provisional grant, Solicitors for the executrix complied with the request of the Probate Master but they seemed to have been left uninformed as to the nature and purport of such calling in. When the Probate File was presented for my consideration, I observed in the file a copy of an ex parte summons which was signed, on the face of it, by Messrs. Y.C. Lee & Pang, solicitors for the grand-nephew, the Caveator. The ex parte summons bears the date of the 14th July 1987, but it did not seem to have been formally filed. Revocation was prayed for of the provisional grant in the ex parts summons as it was sought by the Probate Master in a memorandum dated the 14th July 1987. There appeared to be some non-observance of the Non-Contentious Probate Rules in allowing the Provisional Probate to be sealed. In certain correspondence in the Probate File from solicitors acting for the executrix, an indication was given that use had been or might have been made of the provisional grant. Revocation of any grant of Probate or Administration is a matter of considerable concern, both to the parties interested and to the Court. I caused enquiry to be made of solicitors acting for the executrix as well as solicitors for the grand-nephew. As a result of communication, I instructed the Clerk-in-Charge of the Lists to have a date fixed so that the matter could be properly canvassed and hopefully determined. My decision was accordingly conveyed to the legal advisers for the executrix and the grand-nephew; hence, we meet today.

3. Before me, there is the ex parte summons of the grand-nephew which must now be taken as an application made ex parte but heard on notice to the executrix. Also placed before me today is the inter partes summons of the executrix. Suffice it for me to say, by both summonses the parties seek orders adverse to the interests of the other of them. Also before me is the Probate Master's application to have the provisional grant called in revoked.

4. In the course of the proceedings, solicitor for the grand-nephew made an application to adjourn the ex parte summons. It was submitted that in the light of the Warning served on and against the Caveator, the grand-nephew must not be deprived of the benefit, provided by the Non-Contentious Probate Rules, of fully stating all his interests in response to it. Solicitor for the grand-nephew observed that if the ex parte summons should be adjourned, by the same parity of reasoning the executrix's inter partes summons should likewise not be proceeded with.

5. To make matters more out-of-the-ordinary, an oral application for an interim injunction, unsupported by affidavit evidence and without instructions to give the usual undertaking as to damages, was made on behalf of the grand-nephew.

6. I have been assured that all the applications and submissions made before me today are on the instructions of the grand-nephew.

7. Prior to these applications to adjourn and for the interim injunction against the executrix, invoking the inherent jurisdiction of the Court sitting in its probate jurisdiction - there were matters evidently causing great concern to the Court - on my own motion, I made enquiry of the grand-nephew through his solicitor, Mr. Pang as to the entitlement of the grand-nephew to enter a Caveat and the purpose of his doing so. Mr. Pang took an initial exception to the Court's enquiry on the ground that it was incumbent upon the executrix to show the absence of legal justification for the grand-nephew so to enter a Caveat, by way of entitlement and on the merits. However, solicitor for the grand-nephew acknowledged the Court's power to enquire into as well the entitlement of the grand-nephew to enter the Caveat as his purpose for doing so and offered assistance.

8. The grand-nephew, according to his solicitor Mr. Pang, was a mere alleged creditor at the time when the Caveat was entered. Papers filed in this case on behalf of the executrix have since been supplied to the grand-nephew who is in the course of perusing them. Mr. Pang stated that there might possibly be additional grounds in support of the grand-nephew's entitlement to enter the Caveat but that he had yet to receive instructions. Time, so Mr. Pang complained, had not after all expired for his client, the grand-nephew to respond to the Warning by stating his whole interests. The crux of the matter, as I see it, lies in the interest of the grand-nephew as at the time of the entering of the Caveat, and perhaps at the latest today, but is not what other possible interests that he may unearth in time to come, on the perusal of the papers so supplied to him by his solicitors.

9. All the Non-Contentious Probate Rules and provisions of the Probate and Administration Ordinance to which I was referred are confined to situations in which a creditor is enabled to expedite a grant of Probate as the result of either inaction or absence or unavailability of the named or other personal representatives. A mere creditor can be expected to welcome an early grant of Probate or Administration. Stagnation in the application for such a grant would hardly serve his purpose in instituting proceedings against the estate, taking steps, if desirable, to have assets of the estate protected to meet his claim, and to secure a judgment against the estate in priority.

10. It would appear to be highly debatable as to whether a mere creditor would be, as of right, entitled to enter a Caveat. It is quite unnecessary for me to express a concluded view on this particular aspect. I would be prepared to go on the assumption that a mere creditor, such as the grand-nephew would be entitled to enter a Caveat. What are the probate issues as between the grand-nephew and the executrix? There can be none. It is said that it would be "an abuse of the caveat procedure to enter a caveat where no probate issue arises". See para. 790 at p. 420 17 Halsbury's Laws of England, 4th ed. The interests; if any, of the grand-nephew on his alleged debt "in" the estate of the  deceased could be better protected and preserved after the grant of Probate. The only purpose given me on behalf of the grand-nephew by Mr. Pang for the entering of the Caveat in this case was his client's fear of disposal or dissipation of the assets in the estate to the prejudice of the claim of the grand-nephew. Solicitor for the grand-nephew put it no higher than a possibility. In truth. it cannot be more than sheer speculation. The character and integrity of the executrix have not been impugned, her financial standing has not been brought into issue, and there is no evidence of any likelihood of the executrix conducting herself in a manner as suggested by Mr. Pang, solicitor for the grand-nephew. The entering of the Caveat has not been shown, upon my own enquiry, to be for a legitimate purpose permitted by the Probate and Administration Ordinance and its subsidiary legislation. As a matter of fact, in the circumstances presently known, the entering of the Caveat by the grand-nephew could not have been pursued for any legitimate purposes.

11. It is a plain and obvious case of an abuse of the caveat procedure. Having reached this conclusion, it is quite unnecessary for me to inquire into the circumstances as to why precisely the provisional grant of Probate was permitted to be sealed with a Caveat having been entered earlier in time. The circumstances call for the exercise of my inherent jurisdiction to have the Caveat so entered by the grand-nephew struck out. I so invoke my inherent jurisdiction and do strike out the Caveat.

12. The application for adjourning the grand-nephew's summons is accordingly refused. The summons of the grand-nephew is dismissed with costs to the administrix who has been brought here apparently on notice by the grand-nephew's ex parte summons. The Probate Master's application be likewise denied. The summons of the executrix and the Caveator's application to have it adjourned lapse in the circumstances and no further order is required. Finally, the application for the interim injunction, ill-defined in terms and wholly lacking in evidential support, must be refused. I order accordingly.

13. These proceedings have been brought about by the inexplicable and unjustified conduct on the part of the grand-nephew. Subject to what Mr. Pang has to say, I find this case one proper for costs to be awarded in favour of the executrix on the common fund basis. As for costs in the application to adjourn the executrix's summons, which has been dismissed, I should add that it is dismissed with costs. As for the preparation and steps taken in the filing of the executrix's summons which has lapsed by reason of my determination, they were evidently necessitated by the same inexplicable and unjustified conduct on the part of the grand-nephew. I would also order costs for the executrix's summons against the grand-nephew. Those costs together with costs of the unsuccessful application to adjourn it should, subject to what Mr. Pang has to say, be for the executrix also on the common fund basis.

Representation:

Mr. Robert Tang, Q.C. & Miss Maria Yuen instructed by M/S. Robert W.H.Wang & Co. for the sole executrix.

Mr. Dickson Pang of M/S. Y.C. Lee & Pang for the Caveator.